throbber

`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ADVANCED MEDIA NETWORKS, LLC,
`Plaintiff-Appellant
`
`v.
`
`AT&T MOBILITY LLC,
`Defendant-Appellee
`______________________
`
`2018-1014
`______________________
`
`Appeal from the United States District Court for the
`Northern District of Texas in No. 3:15-cv-03496-N, Judge
`David C. Godbey.
`______________________
`
`Decided: September 17, 2018
`______________________
`
`BRIAN ANDREW CARPENTER, Buether Joe & Carpenter
`LLC, Dallas, TX, argued for plaintiff-appellant. Also
`represented by MICHAEL CLAYTON POMEROY.
`
` STEVEN MOORE, Kilpatrick Townsend & Stockton
`LLP, San Francisco, CA, argued for defendant-appellee.
`Also represented by ALTON LUTHER ABSHER, III, CAROLINE
`K. WRAY, Winston-Salem, NC; RUSSELL KORN, Atlanta,
`GA; TAYLOR HIGGINS LUDLAM, Raleigh, NC; MICHAEL
`
`

`

`2
`
`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`HAWES, Baker Botts, LLP, Houston, TX; LAUREN J.
`DREYER, Washington, DC.
` ______________________
`
`Before PROST, Chief Judge, LOURIE and CHEN, Circuit
`Judges.
`
`CHEN, Circuit Judge.
`Advanced Media Networks LLC (AMN) sued AT&T
`Mobility LLC (AT&T) for alleged infringement of U.S.
`Patent No. 5,960,074 (’074 patent), which relates to
`wireless networking. The district court issued a claim
`construction order and granted AT&T’s motion for sum-
`mary judgment of non-infringement as to claims 1–3, 9,
`42, and 58 and invalidity under 35 U.S.C. § 305 as to
`claims 128–29, 135, 146, 160–61, 165–67, and 171. Be-
`cause the district court correctly construed the term
`“ethernet packet switching protocol” to require the use of
`the IEEE 802.3 or draft IEEE 802.11 standards, and the
`construction of this term is dispositive, we affirm.
`BACKGROUND
`A. Networking Protocols and Layers
`Computer networks typically use several protocols
`that work together to transmit information, and these
`protocols can be modeled as “layers” in a “stack.” See J.A.
`262. For example, the Open Systems Interconnect (OSI)
`model has seven layers, which include, starting from layer
`1, the physical layer, data link layer, network layer,
`transport layer, session layer, presentation layer, and
`application layer. J.A. 226.
`In the Internet Protocol (IP), data is divided into
`“packets” that are routed to intended destinations and
`might not arrive in the order in which they are sent. See
`J.A. 227–28. IP is a network-layer (layer 3) protocol. See
`id. Transmission Control Protocol (TCP), a transport-
`layer (layer 4) protocol, reassembles packets in the proper
`
`

`

`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`3
`
`order. J.A. 228. The combination of TCP and IP is abbre-
`viated TCP/IP. J.A. 14.
`“Ethernet” protocols, typically used in local area net-
`works, reside below TCP and IP at the data link and
`physical layers of the OSI model (layers 2 and 1 respec-
`tively). J.A. 273 ¶ 65; J.A. 290. In 1983, the Institute of
`Electrical and Electronics Engineers (IEEE) published its
`802.3 standard, which was based on preexisting work by
`Robert Metcalfe and others. See J.A. 462–63. IEEE 802.3
`describes ethernet on a wired network, see J.A. 338, while
`a standard ratified in 1997 called 802.11 describes wire-
`less ethernet, see J.A. 559; J.A. 272. By 1996, the time of
`application for the ’074 patent, a working group had been
`developing a draft of the 802.11 standard for five years.
`J.A. 271.
`As an example of how protocols at different layers in-
`teract, an application such as a file transfer program,
`operating at the application layer, might take part of a
`file and add an application header to the data before
`passing it to the presentation layer. See J.A. 226; J.A.
`341. This process repeats from layer to layer. At the
`transport and network layers, the data transmission
`would rely on TCP and IP, respectively. See id. From the
`network layer, the data could be passed to an ethernet
`connection at layers 2 and 1. See id. At the physical
`layer, the data passes to its destination.
`B. The ’074 Patent
`The ’074 patent issued from an application dated Sep-
`tember 23, 1996. The claimed invention connects a wire-
`less
`local area network
`(LAN)
`to a microwave
`communication system via a hub. “In one embodiment,
`the LAN 104 is a wireless ethernet LAN connecting
`multiple remote personal computers (PCs) as nodes.” ’074
`patent, col. 4 ll. 32–34. Relevant to the parties’ claim
`construction dispute, “[i]n one embodiment, the micro-
`wave communication system and the wireless LAN trans-
`
`

`

`4
`
`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`fers information using an ethernet packet switching
`protocol . . . .” Id. col. 2 ll. 9–11. Claim 1 is illustrative:
`1. A telecomputer network system comprising:
`a redundant digital microwave communi-
`cation system;
`a wireless local area network (LAN); and
`a mobile hub station configured to transfer
`information as a single nomadic transmis-
`sion/reception point between the micro-
`wave communication system and the
`wireless LAN using an ethernet packet
`switching protocol.
`C. Prior USPTO Proceedings
`The ’074 patent issued in 1999 with 40 claims. J.A.
`21. During the course of four ex parte reexaminations,
`AMN amended certain claims in ways that are not at
`issue in this appeal and added 131 claims, for a total of
`171 claims. Id. No claims were found unpatentable.1
`D. The Instant Dispute
`AMN sued AT&T in October 2015. AMN accused
`smartphones and other devices operating on AT&T’s
`wireless 3G and 4G/LTE network of infringing claims of
`the ’074 patent. J.A. 1434–35; J.A. 174. AMN argued
`that AT&T’s wireless communication system constitutes a
`“redundant digital microwave communication system”
`under the claims. J.A. 1434. Further, AMN accused
`smartphones and other devices capable of acting as wire-
`less access points (or “hotspots”) of satisfying the ’074
`
`1 Additionally, six Inter Partes Review petitions
`have been filed against the ’074 patent. Appellant Br. 29.
`The results of those proceedings are not before us.
`
`

`

`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`5
`
`patent’s “wireless LAN” and “mobile hub” limitations.
`J.A. 1434–35.
`On March 1, 2017, the district court issued a claim
`construction order. J.A. 1–14. The district court con-
`strued “ethernet packet switching protocol” to mean “a
`packet switching protocol defined by the IEEE 802.3 and
`draft IEEE 802.11 standards as of the filing date of the
`Patent.” J.A. 9. The district court also adopted AT&T’s
`proposed construction of “wireless local area network
`(LAN)” and construed it to mean “an access point device
`and client devices connected by local over-the-air links
`through which the client devices communicate with the
`access point device.” J.A. 8.
`AMN argued that AT&T’s accused devices satisfy the
`“ethernet packet switching protocol” limitation because
`(a) the devices, when acting as mobile hotspots, rely on IP
`to transfer data between connected clients and servers on
`the Internet via AT&T’s 3G or 4G/LTE network; and (b)
`in AMN’s view, IP is an ethernet packet switching proto-
`col. See J.A. 104.
`On August 25, 2017, the district court rejected AMN’s
`argument that IP—independent of 802.3 or 802.11—is an
`“ethernet packet switching protocol” and granted sum-
`mary judgment of non-infringement for claims 1–3, 9, 42,
`and 58. Advanced Media Networks, LLC v. AT&T Mobili-
`ty LLC, No. 3:15-CV-3496-N, 2017 WL 3987201 (N.D. Tex.
`Aug. 25, 2017). The district court also analyzed claims
`128–29, 135, 146, 160–61, 165–67, and 171, which were
`added in reexamination and recite “internet protocol”
`instead of “ethernet packet switching protocol.” The
`district court concluded that because “ethernet packet
`switching protocol” does not encompass IP, these claims
`impermissibly broadened the scope of claim 1 and were
`thus invalid under 35 U.S.C. § 305. Id. at *2. AMN
`appealed.
` We have
`jurisdiction under 28 U.S.C.
`§ 1295(a)(1).
`
`

`

`6
`
`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`DISCUSSION
`I. Construction of “Ethernet Packet Switching Protocol”
`The “ultimate issue of the proper construction of a
`claim” is “a question of law” that we review de novo. Teva
`Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 838–39
`(2015). When a district court “consult[s] extrinsic evi-
`dence in order to understand, for example, the back-
`ground science or the meaning of a term in the relevant
`art during the relevant time period,” the district court’s
`“subsidiary factfinding must be reviewed for clear error on
`appeal.” Id. at 841.
`There is a “heavy presumption” that claim terms “car-
`ry their accustomed meaning in the relevant community
`at the relevant time.” Home Diagnostics, Inc. v. LifeScan,
`Inc., 381 F.3d 1352, 1355 (Fed. Cir. 2004). “A claim term
`should be given its ordinary meaning in the pertinent
`context, unless the patentee has made clear its adoption
`of a different definition or otherwise disclaimed that
`meaning.” Ancora Techs., Inc. v. Apple, Inc., 744 F.3d
`732, 734 (Fed. Cir. 2014). For a patentee to act as its own
`lexicographer and give a term something other than its
`well-established meaning, the patentee must “clearly set
`forth a definition of the disputed term.” CCS Fitness, Inc.
`v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002).
`The district court construed “ethernet packet switch-
`ing protocol” to mean “a packet switching protocol defined
`by the IEEE 802.3 and draft IEEE 802.11 standards as of
`the filing date of the Patent.” J.A. 9. The parties dispute
`whether an “ethernet packet switching protocol” encom-
`passes any system that transfers data between a wireless
`LAN and a microwave communication system using
`TCP/IP (such as AT&T products used as wireless
`hotspots), or whether, to satisfy this limitation, a device
`needs to transfer data between the networks using the
`IEEE 802.3 or 802.11 protocols.
`
`

`

`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`7
`
`The parties’ disagreement centers on the meaning of
`“ethernet” when combined with the phrase “packet
`switching protocol.” While AMN argues that “ethernet”
`broadly encompasses any transmission protocol that relies
`on a “shared transmission medium,” AT&T argues that by
`1996, persons of skill in the art defined “ethernet” with
`reference to the IEEE 802.3 and draft 802.11 standards.
`The specification sheds no light on which construction of
`“ethernet” is correct; it does not discuss shared media, nor
`does it discuss the 802.3 or 802.11 standards. According-
`ly, the parties and the district court relied on extrinsic
`evidence to establish the meaning of “ethernet packet
`switching protocol” in 1996.
`The district court reviewed the evidence presented
`and found that persons of ordinary skill in the art in 1996
`understood “ethernet” to refer the IEEE 802.3 and draft
`802.11 standards. Relying in part on a networking text-
`book, AT&T’s expert declared: “As of 1996, those of ordi-
`nary skill in the art understood ‘ethernet’ to refer to the
`IEEE 802.3 standard protocol.” J.A. 270; J.A. 224 (“IEEE
`802.3, popularly called Ethernet™, for example, is a bus-
`based broadcast network . . . .”); see also Ethernet, Federal
`Standard 1037C, Telecommunications: Glossary of Tele-
`communication Terms (1996), J.A. 1455 (“Ethernet: A
`standard protocol (IEEE 802.3) . . . .”); Ethernet, Oxford
`Dictionary of Computing (4th ed. 1996), J.A. 455 (“The
`formal definition of the Ethernet standard is available as
`ISO 802.3.”). AT&T’s expert explained that “ethernet”
`was not limited to 802.3, which specified wired network-
`ing: “Because of its many similarities with the IEEE 802.3
`protocol . . . the IEEE 802.11 standard was at the time of
`the application for the ’074 patent often referred to by
`those of ordinary skill in the art as ‘wireless ethernet.’”
`J.A. 272. Moreover, “[b]y 1996, the IEEE 802.11 working
`group had been developing the IEEE 802.11 wireless LAN
`standard for five years.” J.A. 271. AMN submitted other
`extrinsic evidence in support of its “shared medium”
`
`

`

`8
`
`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`construction, e.g., J.A. 444; J.A. 309–10; but none of
`AMN’s citations compels reversal.
`AT&T’s expert also distinguished ethernet from
`TCP/IP because ethernet operates at the physical and
`data link layers of the OSI model, while IP and TCP
`operate at the network and transport layers, respectively.
`J.A. 273. One technical dictionary on which both parties
`rely indicates that “Ethernet is a physical link and data
`link protocol reflecting the two lowest layers of the
`DNA/OSI model.” Ethernet, Newton’s Telecom Dictionary
`(7th Ed. 1994), J.A. 290. AMN cites no technical litera-
`ture indicating that “ethernet” encompasses IP. Indeed,
`AMN concedes that “the noun ‘ethernet’ and the noun ‘IP’
`are not the same.” Reply Br. 4 (emphasis added). To the
`extent AMN is arguing that using “ethernet” as an adjec-
`tive rather than as a noun somehow changes its meaning
`and broadens its scope, AMN has presented no intrinsic or
`extrinsic evidence clear enough to compel departure from
`the conventional understanding of “ethernet,” which
`requires IEEE 802.3 or 802.11.
`Based on the evidence of record, the district court did
`not clearly err in making a factual finding that to a per-
`son of ordinary skill in the art in 1996, “ethernet” referred
`to the IEEE 802.3 and draft 802.11 standards.2
`Thus, in light of the district court’s well-supported
`findings, and in the absence of a redefinition or disclaimer
`by the patentee, the ordinary meaning of an “ethernet
`packet switching protocol” requires transmitting data in
`
`
`2 The district court did not construe “packet switch-
`ing protocol” independently of “ethernet.” J.A. 8–9. On
`appeal, the parties agree that “packet switching protocol”
`needs no independent construction, as one skilled in the
`art would have readily understood it.
`
`

`

`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`9
`
`packets over a data link that uses the IEEE 802.3 or draft
`IEEE 802.11 standards as of the filing date of the patent.
`For example, a device that uses IP at OSI layer 3 and
`IEEE 802.11 at OSI layer 2 uses an ethernet packet
`switching protocol. On the other hand, a device that uses
`IP at OSI layer 3 and does not use IEEE 802.3 or 802.11
`would not use an ethernet packet switching protocol.3
`“Ethernet” had such a well-understood meaning by 1996
`that, without further guidance in the intrinsic record, it is
`unreasonable to suggest that “ethernet packet switching
`protocol” referred simply to layer 4 and layer 3 protocols
`such as TCP/IP, without the 802.3 or 802.11 protocols at
`layer 2.
`AMN nevertheless argues that when used in conjunc-
`tion with “packet switching protocol,” ethernet refers not
`to 802.3 or 802.11, but more broadly to communication
`using a packet switching protocol “via a shared transmis-
`sion medium.” While AMN does not explicitly state that
`it was acting as its own lexicographer, the thrust of
`AMN’s argument is that the definition of “ethernet packet
`switching protocol” does not require the commonly under-
`stood “ethernet” protocols (i.e., 802.3 or 802.11) but in-
`cludes IP alone. As explained below, we disagree.
`A construction of “ethernet” requiring IEEE 802.3 or
`draft 802.11 is consistent with the structure of the claims.
`Claim 1 recites, in relevant part: “a mobile hub station
`configured to transfer information . . . between the micro-
`wave communication system and the wireless LAN using
`
`3 The parties dispute whether 802.3 or 802.11,
`without any layer 3 protocols such as IP, are “ethernet
`packet switching protocols.” We need not resolve this
`issue because AMN’s infringement theory is based on the
`accused devices’ use of the layer 3 Internet Protocol and
`not IEEE 802.3 or 802.11.
`
`

`

`10
`
`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`an ethernet packet switching protocol.” On its face, claim
`1 does not require the use of TCP/IP. Dependent claim 3
`recites “[t]he network defined in claim 1 wherein the
`information is transferred using the TCP/IP protocol.”
`AMN argues that TCP/IP must be a limitation on “ether-
`net packet switching protocol.” But claim 3 does not
`actually specify that “the ethernet packet switching
`protocol is TCP/IP.” As explained above, TCP/IP and
`ethernet operate at different layers in the OSI model and
`can operate in parallel or independently. See, e.g., J.A.
`228; J.A. 335. AMN’s expert agreed that TCP/IP data at
`layers 3 and 4 could be carried via ethernet protocol at
`layer 2, or via a layer 2 protocol other than ethernet. J.A.
`1382–83 at 91:25–92:8. Thus, claim 3 could be interpret-
`ed to require ethernet protocol at layer two plus TCP/IP
`at layers 3 and 4. The claim structure does not indicate
`that TCP/IP alone is a type of ethernet packet switching
`protocol.
`AMN primarily relies on two passages in the specifi-
`cation to argue that “ethernet packet switching protocol”
`includes IP even without 802.3 or draft 802.11. The
`specification states: “In one embodiment, the microwave
`communication system and the wireless LAN transfers
`information using an ethernet packet switching protocol,
`such as an Internet protocol (e.g., the TCP/IP protocol).”
`’074 patent, col. 2 ll. 8–11. Furthermore, the specification
`states: “In one embodiment, the microwave communica-
`tion system transfers information using multiple relay
`stations via an ethernet packet switching protocol such as
`the IEEE 802.10 protocol or the TCP/IP protocol used on
`the World Wide Web.” Id. col. 2 ll. 49–53.
`AMN’s citation to these passages is unpersuasive.
`For a patentee to act as its own lexicographer and give a
`term something other than its well-established meaning,
`the patentee must “clearly set forth a definition of the
`disputed term.” CCS Fitness, 288 F.3d at 1366. Here, the
`specification does not provide a clear definition of “ether-
`
`

`

`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`11
`
`net packet switching protocol.” Rather, it briefly men-
`tions two possible embodiments, one using TCP/IP and
`one using a security protocol known as 802.10 that the
`specification does not mention elsewhere. Under our
`precedents, these brief references in the specification do
`not constitute a redefinition of the well-understood term
`“ethernet.”
`For example, in Ancora, we held that a patent specifi-
`cation that used a term in a limited manner to describe
`embodiments was insufficient to redefine the term. 744
`F.3d at 735. We analyzed whether the term “program” in
`a patent was limited to application programs or could also
`include operating systems, in accordance with the ordi-
`nary meaning of “program.” Id. We noted that the speci-
`fication discussed using the claimed invention to verify
`“application” programs in several examples, including an
`example describing a “preferred embodiment.” Id. Never-
`theless, we explained that “nothing in the specification
`would lead one of ordinary skill in the art to understand
`that the claims use ‘program’ in a sense narrower than its
`ordinary meaning.” Id. Just as a description of a “pre-
`ferred embodiment” in Ancora was insufficient to redefine
`“program,” here, a description of “one embodiment” of an
`“ethernet packet switching protocol” is insufficient to
`redefine “ethernet.” The specification’s mention of an
`embodiment using TCP/IP does not exclude a communica-
`tion system using ethernet (802.3 or 802.11 at OSI layer
`2) in combination with TCP/IP at OSI layers 3 and 4.
`We have also held that a patentee’s “inconsistent” us-
`age of a term in the intrinsic record did “not clearly indi-
`cate that the patent use[d] the language at issue without
`its accepted scientific descriptive meaning.” Bayer Crop-
`Science AG v. Dow AgroSciences LLC, 728 F.3d 1324,
`1328 (Fed. Cir. 2013) (holding that “[n]othing in the
`intrinsic record affirmatively indicates that, if the phrase
`‘2,4–D monooxygenase’ is descriptive, the ‘mono’ part is to
`be ignored”). AMN’s proposed construction would have us
`
`

`

`12
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`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`ignore the accepted meaning of “ethernet” in “ethernet
`packet switching protocol.”
`AMN also relies on a statement during prosecution
`that the prior art does not disclose an “ethernet packet
`switching protocol such as a TCP/IP protocol” to argue
`that the disputed term includes IP. But like AMN’s cited
`statements from the specification, this fails to set forth a
`clear definition of “ethernet packet switching protocol”
`that could displace the ordinary meaning of “ethernet,”
`which requires 802.3 or 802.11. Even if, as AMN argues,
`“packet switching protocol,” in isolation, could encompass
`IP or any other protocol that sends data in packets (such
`as the IPX protocol), AMN does not explain how combin-
`ing “ethernet” with “packet switching protocol” could
`broaden the phrase “ethernet packet switching protocol”
`to mean IP or TCP/IP, independent of the use of 802.3 or
`draft 802.11. Like the district court, we reject adopting
`an interpretation of “ethernet packet switching protocol”
`that would essentially give no meaning to the word
`“ethernet.”
`AMN’s remaining claim construction arguments are
`unpersuasive. AMN argues that draft 802.11, the only
`wireless protocol that fits the court’s construction of
`“ethernet,” has short range and would not be suitable to
`transfer data to the “redundant microwave communica-
`tion system,” which, AMN argues, is a wireless wide-area
`network, or WAN. As AT&T points out, however, AMN
`cites no evidence in support of its argument, and the
`claims at issue on appeal do not require a wireless WAN,
`but simply a microwave communication system, which is
`not restricted to a wide area network. Thus, even though
`802.11 is typically associated with local area networks,
`that fact should not render it unsuitable for the claims as
`written.
`AMN also argues that the fact that claims 128 and
`160—which recite “using an Internet protocol” instead of
`
`

`

`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`13
`
`“using an ethernet packet switching protocol”—issued
`during reexamination shows that the PTO believed IP
`was in the scope of “ethernet packet switching protocol.”
`As AT&T points out, however, this Court has refused to
`use later-issued claims to determine the scope of earlier-
`issued claims. See ArcelorMittal France v. AK Steel Corp.,
`786 F.3d 885, 889 (Fed. Cir. 2015).
`Finally, AMN asserts that construing the disputed
`term to require the use of 802.3 or draft 802.11 would
`exclude the purported embodiments of “ethernet packet
`switching protocols” listed in the specification, namely
`TCP/IP and 802.10. But, as AT&T points out, nothing
`precludes the use of TCP/IP or 802.10 in conjunction with
`802.3 or 802.11 ethernet technology. As AMN’s expert
`acknowledged, “TCP/IP can [be] and frequently is used on
`802.11 networks.” J.A. 655 ¶ 26. Moreover, AT&T’s
`expert explained that 802.10’s security functions “can be
`used in networks based on IEEE 802 physical or data link
`layer protocols.” J.A. 274 ¶ 66. AMN’s counsel agreed
`that 802.10’s security features can be used in networks
`utilizing IEEE 802.3 or 802.11 ethernet. Oral Arg. 14:41–
`52.
`
`In summary, the district court correctly concluded
`that an “ethernet packet switching protocol” requires the
`use of the IEEE 802.3 or draft IEEE 802.11 standards.4
`
`
`4 AT&T also argues that during reexamination of
`the ’074 patent, AMN disclaimed TCP/IP from being an
`ethernet packet switching protocol. Because the plain
`meaning of the disputed term provides a sufficient basis
`to establish that an “ethernet packet switching protocol”
`requires the use of IEEE 802.3 or draft IEEE 802.11, we
`need not reach the issue of disclaimer. Moreover, because
`our construction of “ethernet packet switching protocol”
`
`
`

`

`14
`
`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`II. Summary Judgment
`We apply the law of the regional circuit when review-
`ing a district court’s grant of summary judgment. Classen
`Immunotherapies, Inc. v. Elan Pharm., Inc., 786 F.3d 892,
`896 (Fed. Cir. 2015). The Fifth Circuit reviews a district
`court’s grant of summary judgment de novo. Profectus
`Tech. LLC v. Huawei Techs. Co., 823 F.3d 1375, 1379
`(Fed. Cir. 2016).
`
`A. Non-Infringement
`is case-
`that claim construction
`AMN agrees
`dispositive,5 but AMN argues that it should prevail even
`if “ethernet packet switching protocol” requires IEEE
`802.3 or draft 802.11 because AMN found what it charac-
`terizes as a “draft 802.11” document, which, AMN claims,
`“defines” IP. The district court concluded that IP “is the
`protocol defined by IETF RFC 791 and its progeny
`through the filing date of the patent,” J.A. 14, and AMN
`has not appealed this ruling. However, AMN asserts that
`a draft specification entitled “IEEE P802.11-96/108, Draft
`Inter Access Point Protocol (IAPP) Specification” (J.A.
`613–36) disclosed IP in substantially the same level of
`detail as RFC 791. According to AMN, because the IAPP
`document discusses IP in detail, and the IAPP document
`constitutes a “draft 802.11 standard,” IP must constitute
`an “ethernet packet switching protocol,” and any device
`that uses IP can satisfy the relevant limitation of claim 1.
`The district court rejected AMN’s reasoning. 2017 WL
`3987201 at *1–2.
`
`
`renders all asserted claims either invalid or not infringed,
`we need not reach the construction of “wireless LAN.”
`5 Appellant Br. 56 (“AMN conceded that it could
`prove infringement only if [ethernet packet switching
`protocol] included within its scope IP.”)
`
`

`

`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`15
`
`We agree with the district court that the IAPP docu-
`ment does not define IP. On appeal, AMN admits that
`“RFC 791, published in 1981, ‘specifies the DoD Standard
`Internet Protocol.’” Appellant Br. 7. During claim con-
`struction, AMN explicitly argued that “TCP/IP is not
`defined by the IEEE 802.x family of standards, but is
`instead defined by various Internet Engineering Task
`Force Request for Comments documents.” J.A. 426 (em-
`phasis added). AMN clearly understood that IP does not
`fall within the formal technical specifications of the IEEE
`802.3 or draft 802.11 standards but is instead defined
`elsewhere. Even if the IAPP document were a “draft
`802.11 standard”—and the district court determined that
`it was not6—AMN still would not be able to identify any
`draft 802.11 standard specifying that IP is an “ethernet
`packet switching protocol.”
`Because IP—without 802.3 or 802.11—does not meet
`the definition of an ethernet packet switching protocol,
`and AMN’s only infringement theory was based on the
`accused products’ use of IP, the district court did not err
`in granting summary judgment of non-infringement.
`B. Invalidity of Reexamination Claims
`The district court granted summary judgment of inva-
`lidity of claims 128–29, 135, 146, 160–61, 165–67, and
`171, which recite “internet protocol” instead of “ethernet
`packet switching protocol” because it concluded that the
`claims are broader than the claims in the original patent.
`See 35 U.S.C. § 305 (“No proposed amended or new claim
`enlarging the scope of a claim of the patent will be per-
`mitted in a reexamination proceeding under this chap-
`
`
`6
`In light of the analysis above, we need not reach
`the district court’s ruling that the IAPP document “is
`facially not a draft IEEE 802.11 standard.” J.A. 17.
`
`

`

`16
`
`ADVANCED MEDIA NETWORKS, LLC v. AT&T MOBILITY LLC
`
`ter.”). AMN’s only argument for reversal is that the
`claims are not broader because IP is within the scope of
`“ethernet packet switching protocol.” Because we reject
`AMN’s argument that IP, without IEEE 802.3 or draft
`802.11, is encompassed within the term “ethernet packet
`switching protocol,” we also affirm the district court’s
`conclusion that claims 128–29, 135, 146, 160–61, 165–67,
`and 171 impermissibly broadened the scope of the claims
`in the ’074 patent.
`III. Remaining Issues
`AMN complains that the district court erred in taking
`judicial notice of evidence outside the record in construing
`the challenged claim terms and granting summary judg-
`ment. See Appellant Br. 5. In this case, any error in
`relying on the challenged material was harmless, because
`even without the challenged material, the record supports
`the district court’s conclusion that using IP without IEEE
`802.3 or draft 802.11 does not satisfy the “ethernet packet
`switching protocol” limitation.
`We have considered AMN’s other arguments and find
`them unpersuasive. For the foregoing reasons, we affirm
`the district court’s order granting summary judgment.
`AFFIRMED
`
`

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